As the first parts of the Building Safety Act 2022 (BSA or The Act) come into play many seek clarification on what this means for them. Annie was joined by Charlie Thompson, Stuart MacDougald-Denton, Josh Waterman, and Abiola Banjoko to discuss The Act. Watch the full webinar session or read the highlights below.
The Building Safety Act
There are five key points of the Building Safety Act.
- Amendments to the duties under the Defective Premises Act.
- Leaseholders’ remediation orders about structural or fire safety defects.
- Introduction of liability for construction products which have been defective or misleadingly advertised and applied to a building.
- Section 38 – a statutory right of action for breach of a duty imposed by the regulations.
- Building liability orders – which can be used to make a claim for breaches of duty.
Gateway one, introduced in November 2022, covered planning. Including enhanced documents that accountable persons and duty holders need to have as part of your planning applications.
Gateway two implements The Act practically into construction. The regulator will be expecting to see details of competent people involved, everyone from principal contractors to designers.
The final gateway is before occupation. This will cover items such as a building assessment certificate and registration with HSE. Registration is expected to open in April 2023 and without registration, you will not be allowed to occupy.
There is a misconception that The Act only applies to high-rise or high-risk buildings, over 18m or 7 stories high. The Act sets out enhanced obligations for all clients and building owners. Making them responsible to sign a declaration stating they are hiring competent people.
Who do these new roles, responsibilities and legal liabilities apply to?
The new responsibilities laid out apply to anyone who owns manages or develops buildings over 11m or 5 stories. There are certain exceptions to the rules, so be sure to check what applies to you. The Act can be applied through the entirety of the building’s life, this includes maintenance work too. Building liability orders have the potential to impose liability on any entity to carry out work in relation to those dwellings.
Is the Act a good thing for the industry?
It will be difficult as the timescale is tight with 12500 buildings to be registered by November. Overall, the panel felt this will be a good thing for the industry and bring more accountability. It should also provide peace of mind to leaseholders and occupants. There may be some negotiations on the timescale but it is happening. There is of course slight confusion because we don’t have all the details, yet which should be coming through secondary legislation.
Who is covering the costs?
The BSA does add a considerable upfront cost to the clients and contractors. The government has tried to tie developers into a remediation promise to pay. Not all involved in this agreement are responsible for the problems in the buildings. This may be a better way to see it through rather than coming from the government’s pockets.
Last week, the government published a list of 11 developers who have not signed contracts requiring them to remediate buildings in need of fire safety remediation works. These include Galliard, Lendlease, and Rydon Homes to name a few. The government threatens ‘consequences’ but what these include we do not know yet.
There is a mixed bag of approaches. Mostly due to the struggles in understanding what the BSA covers, how far it reaches and its impacts on the industry. The planning side is already here, and people are already being tripped up and many have chosen to put their work on hold until we better understand the BSA.
It is an inevitability that there will be more disputes. The government will pursue whoever they see as responsible for the original installation. There has been no clear decision on responsibility yet. The only thing likely to change is the route for funding. The older buildings that do not fall into the dispute forum before will now be bringing in more disputes as will the buildings between 10m and 18m that have no clear guidance for funding remediations.
What does this mean in practical terms?
Most contractors have come to discussions on remediation and take their duty of care very seriously. Those who do not come to the without prejudice discussion are followed up with legal action but there have been no major problems yet.
What advice do you have for anyone thinking they might be approaching a dispute?
Don’t lose sight of the starting point. The building blocks of your claim will be documentation of contracts and relevant statutory duties before you move on to the new regime. Start at the beginning and go back to the basics.
Look hard into the insurance side. A lot of the design defects that come up may need an architect or contractor to solve, but the reality is they don’t have insurance for the problem.
Construction and property will need to work together a lot more going forward. We will see some overlap, especially with remediation orders.
Thanks to all who joined us for this session, keep an eye on the Limeslade website for the next event.